This provision is loosely formulated and some controversy exists as to whether this article is legally binding because of the escape-clause ‘’as far as States may find it practicable’’. The Obligations of States Under the Chicago ConventionĪrticle 28(a) of the Chicago Convention provides that ‘’ Each contracting State undertakes, so far as it may find practicable, to: ‘’Provide, in its territory, airports, radio services, meteorological services and other air navigation facilities to facilitate international air navigation, in accordance with the standards and practices recommended or established from time to time, pursuant to this Convention’’. This paper explores the possible defendants in a claim against air traffic controllers for alleged negligence in the event of a serious incident or accident by analyzing the basis and form of ATCO’s liability in different States, followed by a discussion of the jurisdictional issues which highlight the remaining future challenges in relation to a possible unification of the rules regulating the liability of air traffic controllers. Next, an enumeration and analysis of the core duties of air traffic controllers is undertaken. First, the main duties of States relating to the provision of air navigation services deriving from the Convention on International Civil Aviation is examined. The aim of this paper is to analyze the various current rules that govern the liability of air traffic controllers and highlight their inconsistency across several jurisdictions. This delicate question touching upon the sovereignty of States was not examined by the drafters of the Chicago Convention 8 in 1944 and was left to national law. However there is still no universal convention regulating the liability of air traffic controllers. These instruments provide legal certainty. Similarly the liability to Third Parties on the Ground was established by the Rome Convention of 1952 7. The liability of the air carrier was defined long ago by the Warsaw Convention of 1929 5 and consolidated in 1999 by the Montreal Convention 6. 4 The international aviation community soon realized that air traffic controllers are indispensable in order to ensure the safe operation of flights. The airspace was then divided into several flight information regions but at the end of the 1960s the introduction of supersonic jets like the Concorde or wide body commercial airliners like the Boeing 747 rendered operations more complex. At that time air traffic control operations were relatively easy because there were few models of aircrafts and all were flying at approximately the same speed. This new technology was soon implemented in the field of civil aviation. 3 During the Second World Ward radars of acceptable quality were introduced and were able to detect aircrafts and to determine their altitude, speed and registration. The introduction of radio communications enabled the ground to have basic and short communications with the pilots. Additional visual signals, markings on the ground and lights were installed on runways to facilitate operations.
2 In the thirties runways were extended and Air Traffic Controllers (ATCO’s) were now stationed on top of the terminal building. 1 At that time aviation was an infant industry but flights across the United States and across European countries started to operate. He was instructing the pilot to proceed by raising a checkered flag and was requesting the pilot to wait before being cleared to land or take off by waiving a red flag. His control tower was a wheelbarrow with an umbrella for shade during the summer heat, a notepad and flags. The very first air traffic controller was Archie League at Saint Louis Airport in Missouri.